Malicious Falsehood
67.The sole statement relied on by YNNY in support of its case on malicious falsehood was that Ms McIver, and not Ms Tang, created the Elixir serum.68.This was not the express statement made by either Ms McIver or KMS. The express statement was confined to Ms McIver having created the Elixir serum. However, in Ajinomoto Sweeteners SAS v Asda Stores Ltd [2010] EWCA Civ 609, the Court of Appeal ruled that the single meaning rule of the law of defamation does not apply to the tort of malicious falsehood.69.The relevant section of the public (for both malicious falsehood and passing off) are those who were aware of the Elixir serum sourced from Ms Tang (irrespective of whether they were aware that Ms Tang was the source) and who became aware of Ms McIver’s or KMS’s false representation that the Elixir serum was created by Ms McIver. It seems to me that this section of the public would have received the representation together with the inevitable inference that Ms Tang did not create the Elixir serum. It is the latter which is significant in the context of the allegation of malicious falsehood.70.Alternative meanings of an alleged malicious falsehood can include an implied meaning. In Cruddas v Calvert [2013] EWCA Civ 748, Longmore LJ (with whom Rafferty LJ and Sir Stephen Sedley agreed) discussed the multiple meaning rule in malicious falsehood:“30.Here the duty of the judge at trial is to indicate the reasonably available meanings, decide if a substantial number of persons would reasonably have understood the words to have such a meaning and then decide, in respect of a meaning which is in fact false and damaging, whether the author was actuated by malice.31.The first question therefore is whether the imputation of criminal corruption is a meaning which reasonable persons could read into the articles. Although I feel certain that the single meaning required by the law of libel does not carry that imputation, I cannot feel certain that a number of reasonable people would not have understood the articles as making an imputation of criminal corruption. I would therefore reject Mr Rampton's invitation that we should declare that, for the purpose of the malicious falsehood claim, the imputation of criminal corruption is a meaning which is not available for the purposes of malicious falsehood.32.It might appear that there is a tension, even an incompatibility, between the proposition that a particular meaning is plainly wrong and the proposition that it is nevertheless a possible meaning. The reason why it is not necessarily so lies in the difference between libel and malicious falsehood. In malicious falsehood every reasonably available meaning, damaging or not, has to be considered. In libel, the artifice of a putative single meaning requires the court to find an approximate centre-point in the range of possible meanings. If, instead, a court of first instance selects as the single meaning for libel purposes one of the peripheral meanings in the range relevant to malicious falsehood, an appellate court may very well be satisfied that it has erred, because the single meaning has, generally speaking, to be the (or a) dominant one.”71.The ingredients of the tort were summarised by Glidewell LJ (with whom Bingham and Leggatt LJJ agreed) in Kaye v Robertson [1991] FSR 62:“The essentials of this tort are that the defendant has published about the plaintiff words which are false, that they were published maliciously, and that special damage has followed as the direct and natural result of their publication. As to special damage, the effect of section 3(1) of the Defamation Act 1952 is that it is sufficient if the words published in writing are calculated to cause pecuniary damage to the plaintiff. Malice will be inferred if it be proved that the words were calculated to produce damage and that the defendant knew when he published the words that they were false or was reckless as to whether they were false or not.”72.The implied published statement as I have found it to be, that Ms Tang did not create the Elixir serum, was false.73.Tugendhat J summarised the law on malice in Cruddas v Calvert at first instance, [2013] EWHC 2298 (QB):“[204] Mr Rampton has submitted, and it has not been disputed, that for the purposes of malicious falsehood malice means the same as it does in libel in relation to qualified privilege: Spring v Guardian Assurance plc [1993] 2 All ER 273 (CA), and Gatley para 21.7.[205] On this definition a claimant is required to prove that the defendant was actuated by some wrong or improper motive, and knowledge that the words complained of were false will generally be conclusive of malice (other than in those exceptional cases where a person may be under an obligation to pass on information which he knows to be false or does not believe to be true). See Horrocks v Lowe [1975] AC 135, 149–151.”74.It was, of course, not possible for Ms McIver to give evidence about her belief or otherwise in the truth of her statement as to who had created the Elixir serum. However, on the evidence available I have no real doubt that Ms McIver knew that her statement was false. Malice is established.75.In Cruddas Tugendhat J also discussed the meaning of s.3(1) of the Defamation Act 1952:“[193] In the present case no actual damage is pleaded. Mr Cruddas relies on 3(1) of the 1952 Act. In Tesla Motors [v British Broadcasting Corporation [2011] EWHC 2760] it was common ground that the words ‘calculated to cause pecuniary damage’ mean ‘more likely than not to cause pecuniary damage’. See IBM v Websphere Limited [2004] EWHC 529 (Ch) at para 74. ……[195] Mr Rampton submits that the meaning of ‘likely’ given in Tesla is correct. I did not hear oral submissions on the law. I adopt that meaning for the reasons given in that case.”76.For the reasons I have given in the context of passing off, I am not satisfied that the false statement caused YNNY any pecuniary loss. The claim for malicious falsehood fails.